Manuel Gutan
"Lucian Blaga" University of Sibiu, Law, Faculty Member
- Chief-editor, Romanian Journal of Comparative Lawedit
This article deals with European Law as a legal transplant facing the Romanian constitutional culture, in the context of constitutionally limiting the Romanian State’s sovereignty as a member of the EU. Consequently, the reception of the... more
This article deals with European Law as a legal transplant facing the Romanian constitutional culture, in the context of constitutionally limiting the Romanian State’s sovereignty as a member of the EU. Consequently, the reception of the EU law into the Romanian constitutional system (and culture) is determined by two paradoxically divergent Romanian legal-cultural traits: on the one hand, the necessity (bearing accents of national legal pride) to cherish and fructify the Romanian legal (constitutional) traditions, reified, as I shall denominate, as ‘the adapted Romanian law’, and stipulated in the 2003 amended Constitution as a ‘tradition firewall’ / ecran de traditionalite. On the other hand, I shall consider the Eurocentric, non-identity-centred and uncritical dimension of the Romanian legal culture. In this context, the reaction of the Romanian Constitutional Court (RCC) can be better understood when it faced the burden of analysing the constitutionality of the 2003 Constitutional project stipulating the limitation of the Romanian state’s sovereignty after joining the EU. By analysing the RCC’s 2003 decision, this paper highlights the conflict between the two above mentioned legal-cultural traits. RCC acknowledged that EU Law is supra-legal but infra-constitutional. Regarding this, some would deduce that the RCC has assumed what we could name ‘the Solange spirit’ (i.e. the identity-centred attitude of the German Constitutional Court when coped with the limits of the Community Law back in 1970s) and applied the desired ‘tradition firewall’. Instead, someone would be disappointed to find out that the RCC, completely ignoring the Romanian constitutional (democratic) traditions, has accepted the EU Law infra-constitutionality by importing it as a positivistic constitutional practice of the European Constitutional Courts, with no preoccupation for the cultural contexts in which those Constitutional Courts dealt with the problem of the primacy of the EU law. All these are conclusive for Romanian constitutional culture, where the identity-centred discourse is only rhetorically manifested, in contrast with the importing mentality which is deepening the weaknesses of Romanian contemporary constitutionalism. This could be a serious problem for Romania’s participation in building a European constitutional culture, primarily architectured as a dialog between the national Constitutional Courts and the European Court of Justice.
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This paper highlights and explains the contribution of the Romanian Constitution of 1923 to building the Romanian ethnocentric (national) constitutional identity and its decisive impact on the constitutional and political developments... more
This paper highlights and explains the contribution of the Romanian Constitution of 1923 to building the Romanian ethnocentric (national) constitutional identity and its decisive impact on the constitutional and political developments during the Romanian 20th century. Grounded in Romanian constitutional nationalism and xenophobia, this constitution failed to accommodate the new international liberal standards regarding the protection of national minorities imposed by the system of the League of Nations after WWI. The Romanian fathers of the constitution not only refused to enshrine in the constitutional text the positive individual and collective rights recognized to the Romanian ethnic minorities by the Treaty of 19 December 1919 but built the 1923 Constitution as a constitutional cathedral of the Romanian ethnic majority where the ethnic minorities were tolerated as shadow citizens. In the short term, this illiberal ethos made quite easier the passage from the Romanian ethnocentric nationalism to the Romanian racial nationalism of the period 1938-1944. In the long term, the Constitution of 1923 represented a pattern of constitutional identity building strongly cherished by the fathers of the postcommunist Constitution (1991). This is why interwar Romanian illiberalism was widely preserved. On a general survey, neither the Constitution of 1923 nor the Constitution of 1991 succeeded in managing in a coherent liberal spirit the linkage between the national/ethnocultural identity and the constitutional identity in multi-ethnic Romania.
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This paper aims to emphasize the existence, between 1859 and 1866, of a sincere fight of the Romanian political elite for the liberal constitutionalism, generally, and for the parliamentary regime, especially, that constantly aimed to... more
This paper aims to emphasize the existence, between 1859 and 1866, of a sincere fight of the Romanian political elite for the liberal constitutionalism, generally, and for the parliamentary regime, especially, that constantly aimed to eliminate or, at least, to limit the authoritarian rule of the Prince. I would like to remark the decisive contribution of Cuza’s reign to the birth of the Romanian unitary and modern nation-state without turning the constitutional and political modernization into a minor issue. It is useful to notice and it is important to acknowledge the failure of the liberal constitutionalism during the reign of Cuza but, in the same time, it is important to notice that it was never abandoned, at least as ideology, by a great majority of the Romanian political elite. The liberal constitutionalism did not die with the failure of the parliamentary regime. The years following the fall of Cuza witnessed a strong ideological enthusiasm towards the principles and values of the liberal constitutionalism (although in its ethnocentric understanding). In the same time, the making of the 1866 Constitution proved a full aversion towards Caesarism and a sincere commitment with parliamentarianism as a precondition for a successful modernization of the Romanian state and society.
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In this paper I intend to give a brief account of the context, causes, structure, aims and dynamic of what I decided to label the Romanian ‘monarchical constitutionalism without octroy’, as a subspecies of the monarchical... more
In this paper I intend to give a brief account of the context, causes, structure, aims and dynamic of what I decided to label the Romanian ‘monarchical constitutionalism without octroy’, as a subspecies of the monarchical constitutionalism. After a short account of the geopolitical, political, legal and social contexts specific to the Romanian Principalities at 1830, I shall address the provisions of the ORs against the accepted standards of the monarchical constitutionalism and follow their subsequent developments in the Romanian constitutional and political praxis. My core idea is that the Russians have borrowed from France and imposed the specific constitutional mechanisms of limited monarchy for geostrategic purposes, in a Romanian society organically incapable and, above all, having a political class manifesting very short interest in effectively applying them. At the end, the monarchical constitutionalism was a failed Russian experiment. At 1849, after the Wallachian Revolution of 1848, the Convention of Balta-Liman, concluded between the Ottoman and Russian Empires, has amended the ORs replacing the limited monarchy with a full-fledged monarchical absolutism.
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The 1990s brought a radical change in relation to the theoretical and methodological reflection in the matter of judicial comparison. We became aware not only of the shortcomings of the idea accumulations in the comparative law of the... more
The 1990s brought a radical change in relation to the theoretical and methodological reflection in the matter of judicial comparison. We became aware not only of the shortcomings of the idea accumulations in the comparative law of the middle of the 20th century, but a true change of the ideological paradigm occurred, as well. In the context of the strong accession of the critical movement in the study of law, as well as under the strong influence of the postmodern relativism, the concepts that the comparative law had settled out until 1980s were subject to a strong criticism and even completely rejected at a given time. Generally speaking, the new critical trend showed its interest in the judicial cultures, in postulating the differentiation in law and in a thoroughly contextualized legal analysis. The ideological break which emerged, reflected itself in a conceptual way through a theoretical distinction between the future significance of the classical comparative or traditional law...
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This article is replying to Professor Vladimir Hanga’s core ideas about the Wallachian Proclamation of Islaz (1848) from both an analytical and hermeneutical point of view. It argues against the Proclamation’s nature of a bill of rights,... more
This article is replying to Professor Vladimir Hanga’s core ideas about the Wallachian Proclamation of Islaz (1848) from both an analytical and hermeneutical point of view. It argues against the Proclamation’s nature of a bill of rights, stressing its peculiar ethos and lack of clear liberal goals; it confirms V. Hanga’s allegations about the influence of the French revolutionary ‘declarations des droits’ but it emphasizing the overwhelming influence of the French 1848 Constitution; it is backing a hermeneutical perspective that is trying to explain the content and ethos of the Proclamation through the lens of the Romanian philosopher and writter Ion Heliade Rădulescu.
Articolul de față își propune nu doar să evalueze măsura în care CCR, prin intermediul jurisprudenței sale, a devenit un purtător de drapel a identității constituționale românești, în general, și în ”lupta” cu CEJ, în special, ci și ce... more
Articolul de față își propune nu doar să evalueze măsura în care CCR, prin intermediul jurisprudenței sale, a devenit un purtător de drapel a identității constituționale românești, în general, și în ”lupta” cu CEJ, în special, ci și ce anume ar putea asuma, pe viitor, instanța constituțională românească drept identitate constituțională națională. În acest context, accentul nu va cădea nici pe problematica dialogului sau lipsei de dialog dintre CCR și CEJ, nici pe problematica integrării (constituționale a) României în UE prin prisma respectării principiului priorității de aplicare dreptului european față de cel național. În centrul analizei se află măsura în care CCR a reușit să stabilească ce anume reprezintă identitatea constituțională românească, precum și detectarea unui potențial conținut al acesteia.
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This paper aims to emphasize the existence, between 1859 and 1866, of a sincere fight of the Romanian political elite for the liberal constitutionalism, generally, and for the parliamentary regime, especially, that constantly aimed to... more
This paper aims to emphasize the existence, between 1859 and 1866, of a sincere fight of the Romanian political elite for the liberal constitutionalism, generally, and for the parliamentary regime, especially, that constantly aimed to eliminate or, at least, to limit the authoritarian rule of the Prince. I would like to remark the decisive contribution of Cuza’s reign to the birth of the Romanian unitary and modern nation-state without turning the constitutional and political modernization into a minor issue. It is useful to notice and it is important to acknowledge the failure of the liberal constitutionalism during the reign of Cuza but, in the same time, it is important to notice that it was never abandoned, at least as ideology, by a great majority of the Romanian political elite. The liberal constitutionalism did not die with the failure of the parliamentary regime. The years following the fall of Cuza witnessed a strong ideological enthusiasm towards the principles and values ...
ABSTRACT Placed at the beginning of the Report of the Presidential Commission for analyzing the political and constitutional regime in Romania (2009), M. Dogan’s ideas are disconcerting and demoralizing for anyone who meditates on the... more
ABSTRACT Placed at the beginning of the Report of the Presidential Commission for analyzing the political and constitutional regime in Romania (2009), M. Dogan’s ideas are disconcerting and demoralizing for anyone who meditates on the request to revise the Constitution of Romania in 2013. With the political elite, experts and civil society representatives moving most of them, hopelessly, towards institutions and not towards practice, we can ask ourselves what could be the actuality of the French political scientist words for the present time Romanian society; especially in the context in which the French semi-presidential model is still attractive as a model of constitutional import.
ABSTRACT In this study the author develops and substantiates the thesis according to which under reign of King Carol I (1866-1914), despite the clear purports of the Romanian Constitution of 1866 (inspired by the Belgian Constitution of... more
ABSTRACT In this study the author develops and substantiates the thesis according to which under reign of King Carol I (1866-1914), despite the clear purports of the Romanian Constitution of 1866 (inspired by the Belgian Constitution of 1831), in reality, illa tempore, there was no real democracy in Romania, a real representative government, but political and constitutional life was dominated, de facto, by moderate monarchical authoritarianism of King Carol I, King who was concerned to impose a personal direction in domestic and foreign policy of the country, with the view to render functional mechanisms of the young Romanian state, and that even at the expense of sacrificing real democracy and the parliamentary regime, proclaimed by the Romanian Constitution of 1866.
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In this paper I intend to give a brief account of the context, causes, structure, aims and dynamic of what I decided to label the Romanian ‘monarchical constitutionalism without octroy’, as a subspecies of the monarchical... more
In this paper I intend to give a brief account of the context, causes, structure, aims and dynamic of what I decided to label the Romanian ‘monarchical constitutionalism without octroy’, as a subspecies of the monarchical constitutionalism. After a short account of the geopolitical, political, legal and social contexts specific to the Romanian Principalities at 1830, I shall address the provisions of the ORs against the accepted standards of the monarchical constitutionalism and follow their subsequent developments in the Romanian constitutional and political praxis. My core idea is that the Russians have borrowed from France and imposed the specific constitutional mechanisms of limited monarchy for geostrategic purposes, in a Romanian society organically incapable and, above all, having a political class manifesting very short interest in effectively applying them. At the end, the monarchical constitutionalism was a failed Russian experiment. At 1849, after the Wallachian Revolution of 1848, the Convention of Balta-Liman, concluded between the Ottoman and Russian Empires, has amended the ORs replacing the limited monarchy with a full-fledged monarchical absolutism.
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This paper aims to capture the intellectual effervescence trying to answer the delicate need to build a Romanian legal identity in the modern Romanian nation-state. Consequently, I'm addressing the concept of legal identity in terms of... more
This paper aims to capture the intellectual effervescence trying to answer the delicate need to build a Romanian legal identity in the modern Romanian nation-state. Consequently, I'm addressing the concept of legal identity in terms of subjective / internal [legal] identity, i.e. how the Romanian intellectual elite of the 19 th century and the beginning of the 20 th century understood the Romanian legal identity. Accordingly, I'm interested neither in assessing the objective content of it nor in capturing a general subjective understanding of it, including the perspectives belonging to all social actors in Romania. At the same time, having an overall approach of the Romanian elite's subjective perception about the Romanian national identity, I'm not interested in drawing an exhaustive picture of the diverse intellectual approaches to the problem of legal identity in Romania. In this paper I'm interested only in the Romanian intellectual elite's ideas about how to build a national legal identity while undertaking legal modernization through legal transplants. Moreover, from this pool of ideas I shall focus especially on those intellectual strategies aiming to confer the transplanted law a Romanian identity through a special adaptation by recreation. Résumé Cet article vise à capturer l'effervescence intellectuelle qui a essayé de répondre au besoin délicat de bâtir une identité juridique roumaine dans l'Etat roumain moderne. Par conséquent, je traiterai le concept d'identité juridique du point de vue de l'identité subjective/interne i.e. comment l'élite intellectuelle roumaine du XIXème siècle et du début du XXème siècle avait compris l'identité juridique roumaine. Je ne suis pas intéressé d'en évaluer le contenu objectif et non plus de capturer une compréhension subjective générale, y compris les perspectives de tous les acteurs sociaux en Roumanie. En même temps, dans une approche globale de la perception de l'élite roumaine sur l'identité nationale, je ne suis pas intéressé de donner une image exhaustive des diverses approches intellectuelles du problème de l'identité juridique en Roumanie. Dans cet article, je suis seulement intéressé des idées de l'élite intellectuelle roumaine sur la manière dans laquelle une identité juridique pourrait être construite, simultanément avec une modernisation juridique par des transplants juridiques. En outre, je vais souligner surtout les stratégies intellectuelles ayant pour but de conférer au droit transplanté une identité roumaine par une adaptation spéciale par re-création.
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Placed at the beginning of the Report of the Presidential Commission for analyzing the political and constitutional regime in Romania (2009), M. Dogan’s ideas are disconcerting and demoralizing for anyone who meditates on the request to... more
Placed at the beginning of the Report of the Presidential Commission for analyzing the political and constitutional regime in Romania (2009), M. Dogan’s ideas are disconcerting and demoralizing for anyone who meditates on the request to revise the Constitution of Romania in 2013. With the political elite, experts and civil society representatives moving most of them, hopelessly, towards institutions and not towards practice, we can ask ourselves what could be the actuality of the French political scientist words for the present time Romanian society; especially in the context in which the French semi-presidential model is still attractive as a model of constitutional import.
In this study the author develops and substantiates the thesis according to which under reign of King Carol I (1866-1914), despite the clear purports of the Romanian Constitution of 1866 (inspired by the Belgian Constitution of 1831), in... more
In this study the author develops and substantiates the thesis according to which under reign of King Carol I (1866-1914), despite the clear purports of the Romanian Constitution of 1866 (inspired by the Belgian Constitution of 1831), in reality, illa tempore, there was no real democracy in Romania, a real representative government, but political and constitutional life was dominated, de facto, by moderate monarchical authoritarianism of King Carol I, King who was concerned to impose a personal direction in domestic and foreign policy of the country, with the view to render functional mechanisms of the young Romanian state, and that even at the expense of sacrificing real democracy and the parliamentary regime, proclaimed by the Romanian Constitution of 1866.
ABSTRACT Cet ouvrage se propose de mettre en évidence l’actualité de la problématique de l’importation juridique dans le contexte de la convergence juridique européenne, telle qu’elle est débattue dans le cadre du droit comparé... more
ABSTRACT Cet ouvrage se propose de mettre en évidence l’actualité de la problématique de l’importation juridique dans le contexte de la convergence juridique européenne, telle qu’elle est débattue dans le cadre du droit comparé contemporain, ainsi que la contribution majeure que la théorie des formes sans fond peut avoir dans le débat roumain et celui européen concernant les transformations subies par le système juridique roumain dans l’Europe contemporaine. Une dimension essentielle de cette contribution se reflète dans l’idée selon laquelle la réussite de la transplantation juridique communautaire, qui est à la base de la convergence juridique européenne effective, réside non seulement dans la nécessité que les institutions du droit communautaire reflètent la spécificité culturelle juridique des sociétés européennes (le fond doit générer la forme), mais aussi dans une ingénierie culturelle-juridique destinée à déterminer des changements majeurs au niveau de l’épistémologie et du praxis juridique spécifique des acteurs du droit national (la forme crée le fond). Ces changements doivent converger vers l’apparition d’une culture juridique européenne qui soit à la base du droit communautaire.The paper highlights the relevance of the legal transplant for the contemporary European legal convergence, mainly in the context of the Romanian debate regarding the theory of "forms without substance".
This chapter argues against the legal unified and essentialized concept of national constitutional identity which is frequently constructed by the scholars of European Law and Constitutional Law. Instead, a pluralist, deconstructivist and... more
This chapter argues against the legal unified and essentialized concept of national constitutional identity which is frequently constructed by the scholars of European Law and Constitutional Law. Instead, a pluralist, deconstructivist and de-essentialized concept of national constitutional identity is advocated. Relying on interdisciplinarity, especially on critical historical studies, constructivist sociology and psychosociology, I understand national constitutional identity as a plurality of perpetually diverging and historically driven narratives constructed by particular social actors. Undertaking a special survey of Central and Eastern Europe, I shall highlight that the contemporary Hungarian national constitutional identity should not be equated with the illiberal identitarian narrative enshrined in the constitutional text and preached by the politicians in power, while the Romanian national constitutional identity should not be equated with the liberal-civic identitarian narrative which seems to be dominant nowadays. In Hungary, the national constitutional identity is also constituted by a liberal-civic narrative which directly challenges the illiberal one and tries to undermine its dominant-official character. In Romania, the dominant-official liberal-civic narrative is constantly and more subtle challenged by an illiberal ethnocentric narrative. The Hungarian open and harsh competition between the identitarian narratives is paradoxically much more benefiting than the Romanian apparent nonconflictual and unified identitarian narrative about the national constitutional identity.
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Every discipline perceives and constructs the world in its own way: it conceptualizes and structures an aspect or a fragment of (perceived) reality and develops a research program and method(s) that are apt to develop this construction... more
Every discipline
perceives and constructs the world in its own way: it conceptualizes
and structures an aspect or a fragment of (perceived) reality
and develops a research program and method(s) that are apt
to develop this construction process, having in mind a specific
vision or mission. One can call such disciplinary perception and
construction a special world picture of a discipline.
In various ways the appropriate concept had been considered
by Sir Isaac Newton, Immanuel Kant, the Humboldt brothers,
Dilthey, Martin Heidegger, and others. Depending on different
modes of scientific rationality, the world picture can be seen as
the object, subject, or aim of a scientific discipline. In any case,
even if not explicitly stated, this construction is a core issue of any
discipline.
In law, various (sub)disciplines such as legal philosophy, legal
theory, and comparative law have developed sundry (albeit often
mutually influenced) interpretations of the world. One could argue that there has been competition between the (sub)disciplines
for the right or the possibility to define a world picture generally
valid for discourse about law.
The book is intended to create an awareness
of the fundamental experience and potential that comparative
law possesses when conceptualizing the “legal”. Relying on its
rich experience, comparative law is well positioned to take into
account current developments in the field when (re-)defining its
world picture, in order to conceptualize perceptions of law in a
truly global perspective.
The chapters herein, for the first time presenting the complex
philosophical and historical vision of the world picture of law
developed in comparative law (comparative jurisprudence),
is considered by American, Cypriot, Italian, Moldovan, and
Ukrainian scholars – Oleksiy Kresin, Mehman A. Damirli, Matteo
Nicolini, Oleg Halabudenko, James Gordley, Michele Graziadei, Marco Giraudo, Oleksandr and Denys Tykhomyrov, Oleksandr
Tkachenko.
The second group of articles presents a vision of the spaces of
legal ordering and legal interactions as addressed by American,
Belarus, Italian, Mexican, Romanian, Ukrainian, and Uzbek
researchers – Akmal Saidov, Aleksei Egorov, Hashmatulla Behruz,
Serhiy Rabinovych, William E. Butler, Evhen Kharytonov, Olena
Kharytonova, Manuel Gutan, Carmelo Massimo De Iuliis, and
Jorge A. Sánchez Cordero.
Finally, the third block is dedicated to the issue of
implementation of the elaborated comparative legal world picture
in academia and legal practice: articles by scholars from Canada,
Hungary, Romania, United Kingdom, and the West Indies –
Geoffrey Samuel, Alexandra Mercescu, Csaba Varga, Catherine
Valcke, and Asya Ostroukh.
perceives and constructs the world in its own way: it conceptualizes
and structures an aspect or a fragment of (perceived) reality
and develops a research program and method(s) that are apt
to develop this construction process, having in mind a specific
vision or mission. One can call such disciplinary perception and
construction a special world picture of a discipline.
In various ways the appropriate concept had been considered
by Sir Isaac Newton, Immanuel Kant, the Humboldt brothers,
Dilthey, Martin Heidegger, and others. Depending on different
modes of scientific rationality, the world picture can be seen as
the object, subject, or aim of a scientific discipline. In any case,
even if not explicitly stated, this construction is a core issue of any
discipline.
In law, various (sub)disciplines such as legal philosophy, legal
theory, and comparative law have developed sundry (albeit often
mutually influenced) interpretations of the world. One could argue that there has been competition between the (sub)disciplines
for the right or the possibility to define a world picture generally
valid for discourse about law.
The book is intended to create an awareness
of the fundamental experience and potential that comparative
law possesses when conceptualizing the “legal”. Relying on its
rich experience, comparative law is well positioned to take into
account current developments in the field when (re-)defining its
world picture, in order to conceptualize perceptions of law in a
truly global perspective.
The chapters herein, for the first time presenting the complex
philosophical and historical vision of the world picture of law
developed in comparative law (comparative jurisprudence),
is considered by American, Cypriot, Italian, Moldovan, and
Ukrainian scholars – Oleksiy Kresin, Mehman A. Damirli, Matteo
Nicolini, Oleg Halabudenko, James Gordley, Michele Graziadei, Marco Giraudo, Oleksandr and Denys Tykhomyrov, Oleksandr
Tkachenko.
The second group of articles presents a vision of the spaces of
legal ordering and legal interactions as addressed by American,
Belarus, Italian, Mexican, Romanian, Ukrainian, and Uzbek
researchers – Akmal Saidov, Aleksei Egorov, Hashmatulla Behruz,
Serhiy Rabinovych, William E. Butler, Evhen Kharytonov, Olena
Kharytonova, Manuel Gutan, Carmelo Massimo De Iuliis, and
Jorge A. Sánchez Cordero.
Finally, the third block is dedicated to the issue of
implementation of the elaborated comparative legal world picture
in academia and legal practice: articles by scholars from Canada,
Hungary, Romania, United Kingdom, and the West Indies –
Geoffrey Samuel, Alexandra Mercescu, Csaba Varga, Catherine
Valcke, and Asya Ostroukh.
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This paper aims to propose a new, interdisciplinary-driven concept of imitation that may have epistemological relevance both in comparative law and comparative legal history.
Research Interests:
This chapter brings forward a legal-political assessment of the so-called ”Statute developing the Paris Convention” conceded by Prince Alexandru Ioan Cuza and legitimized by plebiscite after the coup d’état of 2/14 May 1864. It argues in... more
This chapter brings forward a legal-political assessment of the so-called ”Statute developing the Paris Convention” conceded by Prince Alexandru Ioan Cuza and legitimized by plebiscite after the coup d’état of 2/14 May 1864. It argues in favour of an open-minded political analysis of Cuza’s reign, emphasizing the negative impact of this constitutional act on the Romanian constitutional-political development in the second half of the 19th century. The Statute was a milestone in Prince Cuza’s increasing authoritarian agenda and the official institutional architecture of his French-like democratic Caesarism. Despite the essential steps towards the modernization of Romanian society, Cuza’s authoritarian behaviour blocked the legitimate agenda of the Romanian political elites to modernize the Romanian state and political life upon the pillars of liberal constitutionalism.
Research Interests:
This chapter argues against the legal unified and essentialized concept of national constitutional identity which is frequently constructed by the scholars of European Law and Constitutional Law. Instead, a pluralist, deconstructivist and... more
This chapter argues against the legal unified and essentialized concept of national constitutional identity which is frequently constructed by the scholars of European Law and Constitutional Law. Instead, a pluralist, deconstructivist and de-essentialized concept of national constitutional identity is advocated. Relying on interdisciplinarity, especially on critical historical studies, constructivist sociology and psychosociology, I understand national constitutional identity as a plurality of perpetually diverging and historically driven narratives constructed by particular social actors. Undertaking a special survey of Central and Eastern Europe, I shall highlight that the contemporary Hungarian national constitutional identity should not be equated with the illiberal identitarian narrative enshrined in the constitutional text and preached by the politicians in power, while the Romanian national constitutional identity should not be equated with the liberal-civic identitarian narrative which seems to be dominant nowadays. In Hungary, the national constitutional identity is also constituted by a liberal-civic narrative which directly challenges the illiberal one and tries to undermine its dominant-official character. In Romania, the dominant-official liberal-civic narrative is constantly and more subtle challenged by an illiberal ethnocentric narrative. The Hungarian open and harsh competition between the identitarian narratives is paradoxically much more benefiting than the Romanian apparent nonconflictual and unified identitarian narrative about the national constitutional identity.
Research Interests:
Interpretarea vieții constituțional-politice sub domnia lui Cuza în cheia autoritarismului domnesc are o legitimitate tot atât de mare. Pentru a înțelege cu claritate balansul dintre parlamentarism și autoritarism, vom pleca de la a... more
Interpretarea vieții constituțional-politice sub domnia lui Cuza în cheia autoritarismului domnesc are o legitimitate tot atât de mare. Pentru a înțelege cu claritate balansul dintre parlamentarism și autoritarism, vom pleca de la a scoate în evidență conexiunile ideologice ale regimului parlamentar cu valorile și principiile constituționalismului liberal și vom creiona criteriile juridice și expresia instituțională ale acestui regim politic la mijlocul secolului al XIX-lea (2). În secțiunea a-3-a vom arăta faptul că elita politică românească era interesată la mijlocul secolului respectiv de două idealuri: pe de o parte, de crearea statului național unitar român și, pe de altă parte, de limitarea arbitrariului domnesc prin intermediul unui regim parlamentar monist. Cele două idealuri aveau aceeași valoare și erau interconectate. Într-o secțiune următoare (4), vom arăta că prevederile Convenției de la Paris au fost rezultatul unui transplant constituțional impus de marile puteri europene, care a constat în două aspecte: pe de o parte, acestea au fost preocupate să creeze o arhitectură instituțională care să asigure unitatea constituțională a celor două Principate și să favorizeze unificarea lor legislativă și, pe de altă parte, marile puteri au fost prea puțin interesate să dea un contur clar regimului politic convențional. În aceste condiții, s-a pus accent pe rolul și atribuțiile legislative ale organului comun al Principatelor – Comisia centrală de la Focșani și, în același timp, s-au oferit domnilor atribuții exorbitante, în defavoarea Adunării elective. În concluzie, am scos în evidență, printre altele, faptul că textul convențional nu a consacrat un regim parlamentar ci un regim politic apropiat cezarismului democratic al celui de-al doilea imperiu francez; faptul că viața constituțional politică sub domnia lui Cuza ar trebui analizată în lumina celor două perspective ideologice concurente: cea a autoritarismului domnesc și a parlamentarismului; faptul că, sub aspect instituțional, regimul consacrat de Statutul dezvoltător al Convenției de la Paris a manifestat o diferență de grad și nu una de natură față de regimul politic reglementat de aceasta din urmă. Nu în cele din urmă, urmărim să atragem atenția asupra necesității de a evalua corelat idealul împlinit al făuririi statului național unitar român și eșecul limitării puterii domnești prin intermediul unui regim parlamentar funcțional.
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2020/ BOOK IN COLLABORATION/ with Manuel Guțan, Bogdan |ancu, Cosmin Cercel, Bogdan Dima/ București, Universul juridic